Ambujakshi and Ponnappan v. Gopinathan Achari and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932** **WP(C).NO. 17661 OF 2010(O)** **-----------------------------------------** **OS.233/2008 OF MUNSIFF COURT, CHANGANACHERRY** **....................** ## **PETITIONER(S):** - **-----------------------** **1. AMBUJAKSHI, AGED 48,W/O.PONNAPPAN, KEDARAKKUZHIYIL HOUSE, CHAMBAKKARA KARA,KARUKACHAL VILLAGE,CHANGANACHERRY TALUK.** **2. PONNAPPAN,KEDARAKKUZHIYIL HOUSE, CHAMBAKKARA KARA, KARUKACHAL VILLAGE,CHENGANACHERY TALUK,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AND 1ST PETITIONER AMBUJAKSHI,W/O.PONNAPPAN, KEDARAKKUZHIYIL HOUSE, CHAMBAKKARA KARA, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK.** **BY ADV. SRI.M.P.MADHAVANKUTTY** ## **RESPONDENT(S):** ## **--------------------------** **1. GOPINATHAN ACHARI, PARUTHOOTTU KIZHIKKETHIL HOSUE CHAMBAKKARA KARA, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK.** **2. NALINIKUTTY AMMA,THYPARAMBIL HOSUE, CHAMBAKKARA KARA,KARUKACHAL VILLAGE, CHANGANACHERRY TALUK.** **3. BALAKRISHNAN NAIR, THYPARAMBIL HOUSE, CHAMBAKKARA KARA,KARUKACHAL VILLAGE, CHANGANACHERRY TALUK.** **4. SUJATHA BALACHANDRAN, PARUTHOOTTU KIZHAKKETHIL HSOUE, CHAMBAKKARA KARA,KARUKACHAL VILLAGE, CHANGACHERRY TALUK.** **5. MATHEW JOHN, THAKIDYIYEL HOUSE, CHAMBAKKARA KARA,KARUKACHAL VILLAGE, CHANGANACHERRY TALUK.** ## **6. SINU MATHEW,** **KALARIKKAPARAMBIL HOUSE, CHAMBAKKARA KARA,KARUKACHAL VILLAGE, CHANGANACHERRY TALUK.** ## **7. REJI,** **OTHANAMPARAMBIL HOSUE, CHAMBAKKARA KARA, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK.** **ADV. SRI.GEORGE ZACHARIAH ERUTHICKEL FOR R1 TO 7** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX ---------------** **PETITIONER'S EXHIBITS: ----------------------------------** **EXHIBIT P1 TRUE COPY OF THE INTERIM INJUNCTION PETITION FILED BY THE FIRST PETITIONER BEFORE THE COURT BELOW.** **EXHIBIT P2 TRUE COPY OF ORDER DATED 11.7.2008 IN I.A. NO.1420 OF 2008.** **EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE RESPONDENTS IN O.S. NO.233 OF 2008.** **EXHIBIT P4 TRUE COPY OF THE REPORT AND PLAN BY THE ADVOCATE COMMISSIONER.** **EXHIBIT P5 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS.** **EXHIBIT P6 TRUE COPY OF THE AMENDMENT APPLICATION FILED BY THE PETITIONERS.** **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 28.5.2010 IN I.A. NO.636 OF 2010 BY THE MUNSIFF'S COURT, CHANGANACHERRY.** **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 28.5.2010 IN I.A. NO.637 OF 2010 BY THE MUNSIFF'S COURT,CHANGANACHERRY.** **RESPONDENT'S EXHIBITS:** **----------------------------------NIL** **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.17661 of 2010 ==================================== Dated this the 28[th] day of September, 2010** ## **J U D G M E N T** This Writ Petition is filed in challenge of Ext.P7, order passed by the learned Munsiff dismissing I.A. No.636 of 2010 in O.S. No.233 of 2008. That was an application for amendment of plaint to incorporate a prayer for fixation of northern and western boundaries of the suit property. The suit was originally filed by petitioner No.1 for a decree for prohibitory injunction against respondents trespassing into the suit property or demolishing the northern and western boundaries and increasing width of the pathway. Petitioner No.1 alleged that the suit property belonged to her husband who is working abroad and that she has filed the suit on behalf of her husband. There was an interim order of injunction against respondents trespassing into the property, demolishing boundaries or increasing width of pathway. Later petitioners alleged that respondents violated the said order of injunction. Advocate Commissioner inspected the property and submitted Ext.P6, report and plan. In that report and plan northern and western boundaries of suit property were fixed and ## **W.P(C) No.17661 of 2010** ## -: 2 :- the alleged trespassed area on northern side of the property was also indicated. Following, that petitioner No.1 along with her husband (petitioner No.2) filed Ext.P6, application (I.A.No.636 of 2010) to amend the plaint to incorporate a prayer for fixation of northern and western boundaries of the suit property and also to incorporate the name of petitioner No.2 as additional plaintiff No.2 in the suit. That application was resisted by respondents reiterating their contention that on the northern side of the suit property there is a public pathway, petitioners trespassed into the public pathway and constructed compound wall annexing a portion of the said pathway. They also denied the allegation of violation of order of injunction and contended that if the amendment as requested for is allowed that would alter the nature and character of the suit. Learned Munsiff observed in Ext.P7, order that suit for prohibitory injunction is filed in the year, 2008 but in the application it is not stated when the boundary was demolished and considering the entire facts and circumstances there is no bona fides in Ext.P6, application. Result was a dismissal of that application which is under challenge in this Writ Petition. Learned counsel for petitioners contends that in the nature of subsequent events after the interim order of ## **W.P(C) No.17661 of 2010** ## -: 3 :- injunction was passed and to prevent multiplicity of suits it was necessary that petitioners were permitted to amend the plaint and incorporate prayer for fixation of boundary. At the time of argument learned counsel for petitioners stated that since there is no prayer for recovery of possession of trespassed area amendment even if allowed may require a further amendment to incorporate a prayer for recovery of possession and hence petitioners may be permitted to file fresh application for impleadment of petitioner No.2 as additional plaintiff No.2 and to amend the plaint to incorporate a prayer for fixation of boundary and recovery of possession of the trespassed portion. Learned counsel for respondents contended that it was contended in the written statement itself that there is a public pathway on the northern side which petitioners trespassed and constructed a compound wall annexing a portion of the said pathway. According to the learned counsel attempt of petitioners is to legalise their illegal act by seeking amendment of the plaint incorporating a prayer for fixation of boundary. It is also contended that amendment if allowed would result in prejudice to them and would alter the nature and character of the suit and the proviso to Order VI Rule 17 of the Code of Civil Procedure (for ## **W.P(C) No.17661 of 2010** -: 4 :- short, “the Code”) applied since application was preferred only on the day case came up for trial in the list. 2. So far as the last objection regarding application of proviso to Order VI Rule 17 of the Code is concerned the decision ## of the Supreme Court in **Sushil Kumar Jain v. Manoj** **Kumar** (2009 [2] KLT SN 81 – (Case No.81) says that trial commences from the stage of examination of witnesses. Here, may be, the case was posted for trial in the list but admittedly examination of witnesses has not commenced and probably in view of the application for amendment the case was removed from the list. Hence there is no question of application of the proviso to Order VI Rule 17 of the Code. Even otherwise this Court held in **Eapen Antony v. Joseph and Another** (ILR 2009 [1] Kerala 712) that even a diligent client may not have been able to file the application for amendment before the trial commenced for various reasons including that necessity for making an application for amendment being not brought to his notice by the counsel concerned. Hence I am not impressed by the contention that amendment was sought after trial commend and hence it is not maintainable for non-compliance of proviso to Order VI Rule 17 of the Code. ## **W.P(C) No.17661 of 2010** -: 5 :- 3. So far as the contention that the amendment if permitted would alter the nature and character of the suit is concerned I must bear in mind that amendment sought for is in relation to matters which according to the petitioners transpired subsequent to the institution of the suit and allegedly in violation of the order of injunction. In such a situation it is possible for petitioners to seek amendment of the plaint. If respondents have a contention that public pathway on the northern side has been annexed by the petitioners it is open to them to raise that contention and resist the amended plaint. 4. It is however seen that though there is a prayer for fixation of boundary there is no prayer for recovery of possession of the alleged trespassed area. This court in **Bapputty @** ## **Saidali v. Cheriakutty @ Veerankanni Rawther** (1990 [1] KLJ 218 age paragraph 6) has stated that fixation of boundary can be ordered only after settling various other disputes as to title and possession put forward by the parties and that it is no decision to fix boundary without settling such other disputes. Fixation of boundary cannot be a short cut to over-reach such contentions. Hence if petitioners have a case that any portion of the suit property is trespassed upon it was appropriate that ## **W.P(C) No.17661 of 2010** ## -: 6 :- petitioners asked for recovery of possession or such other appropriate reliefs if any, as circumstances warranted along with the prayer for fixation of boundary. Exhibit P6, application suffers from that defect. I must also bear in mind that petitioner No.2 herein is not a party to the application or suit. In such a situation there could not be an amendment of the plaint to incorporate the name of petitioner No.2. The proper procedure was to seek impleadment of petitioner No.2 on appropriate grounds if any available to petitioners and also seek consequential amendment. 5. Learned Munsiff has observed that the date of alleged demolition of the boundary is not stated in Ext.P6, application. But I must bear in mind that according to petitioners that incident occurred after the institution of the suit. In other words that is a post litum cause of action. 6. Having regard to the facts and circumstances of the case I am inclined to set side the finding of learned Munsiff in Ext.P7, order but since petitioners sought permission to file fresh application for impleadment I do not want to interfere with the ultimate dismissal of I.A. Nlo.636 of 2010. But I make it clear that dismissal of I.A. No.636 of 2010 will not foreclose right of ## **W.P(C) No.17661 of 2010** -: 7 :- petitioners to file fresh applications for impleadment and for amendment of the plaint as circumstances warranted. Resultantly, Writ Petition is disposed of in the following lines: (i) Finding entered by the learned Munsiff in Ext.P7, order is set aside. (ii) I make clear it clear that dismissal of Ext.P6, application will not prevent the petitioners from filing appropriate application for impleadment of petitioner No.2 as additional plaintiff No.2 and to file appropriate application for amendment of the plaint as circumstances warranted. (iii) Petitioners shall file such applications if any within a month from this date. ## **W.P(C) No.17661 of 2010** -: 8 :- (iv) Needless to say the respondents will have the opportunity to oppose those applications. Learned Munsiff shall dispose of such applications if any as proved under law. ## **THOMAS P. JOSEPH, JUDGE.** vsv